This is an action for money had and received, to recover the amount of a tax alleged to have been illegally collected.
*65The legality of the assessment is conceded. This necessarily includes the legality of the purpose for which the tax was assessed. If such is the case, it clearly follows that the city has no money in its treasury, by reason of this payment, which does not in good conscience belong to it. It would seem, then, that whatever other cause of action the plaintiff may have, this is not open to him.
But he claims that the defendant has his money, when it is only entitled to his labor. It is true that the tax was assessed, in the first instance, as a highway tax, and assigned to a surveyor for collection. If it were payable in labor, the plaintiff would be entitled to notice and demand, as required by R. S., c. 18, § 45, and it is alleged that this notice was not given. Were this so, it does not affect the legality of the tax. The omission might render the surveyor liable, and if the city could be holdeu for his misdeeds, it would not be in this form of action.
If this omission appeared in the surveyor’s return, then the assessoi’s erroneously inserted it in the lists of money taxes, where the case finds it. It would be equally erroneous to insert it in the money tax of the same year in which it was assessed.
The assessment of a highway tax, to be paid in labor, is one thing, to convert' it into a money tax is another. The former is a step, and a necessary one, to the latter; still, it is only a step. To enable the assessors to make the money assessment, they must have the return of the surveyor showing who are the delinquents, and then assess the highway tax of such in the money list of the next year. R.S., c. 18, § 48. Patterson v. Creighton, 42 Maine, 378.
The complaint of the plaintiff rests upon the alleged errors of the assessors in putting his tax into the money list; or in other words, assessing it as a money tax. If all his allegations are true, the tax does not become void. The errors, or omissions, of the assessors do not affect the tax, but having paid that, he is entitled to an action, — not to recover his money back — but for his damages sustained by reason of such errors or omissions, if any. R. S., c. 6, § 114. Rogers v. Greenbush, 58 Maine, 390. Gilman v. Waterville, 59 Maine, 491.
Judgment for defendant.
Appleton, C. J., Walton, Barrows, LiBBEYand Peters, JJ., concurred.